These four charges of
discrimination on the basis of sex by a public accommodation were joined
for public hearing after the investigating commissioner found probable
cause to credit the allegations in the complaints. A public hearing was
held on April 26, 199 before the Commission, which examined documentary
evidence and heard the testimony of eleven witnesses.

I. Factual Background

Franklin Lodge of Elks is a local
chapter ["subordinate lodge"] of a nation-wide organization of over 2OOO
lodges, with a total membership of approximately 1,2OO,OOO. Subordinate
lodges must be located in a community of at least 5O00, and have at least
25 members. Total membership in the Franklin lodge is about 622
individuals. Approximate population of Franklin is 830O. Approximate
population of the Franklin areas, from which the lodge draws its
membership, including Pranklin, Tilton, Northfield, Sanbornton, and
Andover, is 20,O00.

The Elks is a benevolent
organization, which raises money to donate to various charities. In
addition to their charitable activities, Elks lodges sponsor a full
calendar of social and fundraising activities. The Franklin lodge
operates a bar and grill ["club"] in the lodge, where members can
purchase food and alcoholic beverages for themselves and their
guests.

The Elks hold a liquor license from
the State of New Hampshire, with a supplemental license for 18-25 events
per year. The respondent rents its lodge to members for private
functions, such as wedding receptions. The respondent also rents its
lodge to other organizations for special events.

In 1996, income from the
respondent's club amounted to approximately $43,000. The respondent
sponsors weekly Bingo games, which are open to the public. In 1996 Bingo
generated $17,000 for the lodge, while costing approximately $6,893.
Membership dues brought in just under $30,000 in 1996. The respondent's
budget indicates that its fixed expenses (insurance, taxes, etc.),
administrative expenses, and expenses for maintenance and upkeep total
approximately $148,000. Without revenue brought in from commercial
enterprises such as Bingo, Lucky-7, and its club, the respondent would
not be able to maintain the lodge.

Elks has in the past sponsored the
Emblem Club, an organization for non-members. Because membership in the
Elks had been limited to males, the Emblem Club consisted of the female
spouses of members. Emblem Club members support the work of the Elks by
volunteering their time and work effort to the organization's activities
and fundraising.

The qualifications for membership
in the Elks are U.S. citizenship, 21 years of age or over, belief in God,
good character and not being a Communist.

Elks membership used to be
restricted to white males with the above qualifications. However, when
challenged by a black male, the national organization began the process
of changing its membership. In 1995, the gender requirement was removed
from the Elks constitution .

The Elks maintain a home page on
the internet, giving information about the organization and telling
interested persons how they can locate a lodge near them and apply for
membership.

When someone applies for membership
in the Elks, an investigating committee looks at the application and
interviews the applicant to determine if the committee will recommend an
applicant for membership. Personal reasons are not valid reasons for
voting against a qualified applicant.

Five females, including the four
complainants, filed written applications for membership with the Franklin
Lodge of Elks 91280 in the spring of 1997 and were approved by the
investigating committee. To be approved for membership, the
applicants.must receive a two-thirds majority vote.

Renee LaBonte had been a member of
the Emblem Club for sixteen years, and was president for three
terms.

JoAnn LaBonte had been a member of
the Emblem Club since 1983 and volunteered in support of the Elks for
many years.

Terry Bergeron-Hoyt had been a
member of the Emblem Club for five years, and served as an officer. She
donated many hours of volunteer time to the Franklin Lodge
activities.

At the time she applied for
membership, Sally Marcoux had been a member of the Emblem Club for eight
years. She served as president in 1996 and 1997, and spent many hours
volunteering in support of Elks' activities.

The applications of the four
complainants, the other female applicant, and five male applicants were
voted on as a whole by the membership on April 9, 1997. The membership
rejected the prospective members by one vote. Individual ballots were run
on each applicant. The five male applicants were approved and the five
females were rejected, some by one vote.

Dale Parris, the Exalted Ruler,
called for another ballot for the five females who had been rejected. The
ballot was held on April 23, 1997 and again the five women were rejected
by the membership .

The Elks leadership informed the
women that they could apply to the Grand Lodge for a waiver so they would
not have to wait six months to reapply. None of the complainants
requested a waiver.

II. Legal Standards -
Jurisdiction

RSA 354-A:2,XIV defines "places of
public accommodation" to include any inn, tavern or hotel, whether
conducted for entertainment, the housing or lodging of transient guests,
or for the benefit, use or accommodations of those seeking health,
recreation or rest, any restaurant, eating house, public conveyance on
land or water, bathhouse, barbershop, theater, golf course, sports arena,
health care provider, and music or other public hall, store or other
establishment which caters or offers its services or facilities or goods
to the general pubic. The definition excludes "any institution or club
which is in its nature distinctly private."

RSA 354-A:2,XV defines "unlawful
discriminatory practice" to include practices prohibited by the federal
Civil Rights Act of 1964, as amended. Thus, it is appropriate to look at
federal case law in interpreting similar provisions of state law.

Title II of the Civil Rights Act of 1964 (42 U.S.C. §2000a)
prohibits discrimination in public accommodations on the basis of race,
color, national origin and religion. Title II contains exemptions for
religious organizations and private clubs or other establishments "not in
fact open to the public."

The burden of proof rests on the respondent to substaantiate its claim
that it is an institution or club which is, in its nature, distinctly
private. See: Nesmith v. Young Men's Christian Association of Raleigh,
North Carolina, 397 F.2d 96 (4th Cir. 1968).

In making the determination whether groups are in fact "private clubs"
within the meaning of Title II of the Civil Rights Act, courts have
identified a number of factors that may be relevant:

a) the selectiveness of the group in the admission process;

b) the degree of membership control over internal governance;

c) whether the organization advertises to attract members;

d) whether the organization made insubstantial changes in its prior
operation in order to avoid the impact of civil rights legislation;

e) the use of club facilities by non-members;

f) the extent of commercial activity by the club; and

g) the purpose of the organization.

Not all of the above factors have to be present in order for it to be
determined that a club or institution is not in fact "private." Extremely
important to the determination is any evidence having a bearing on
whether the membership is genuinely selective on some reasonable basis.
Nesmith v. Young Men's Christian Association of Raleigh, N.C., 397
F.2d (4th Cir. 1968). See also: 8 ALR Fed 634, "Construction and
Application of §201(e) of the Civil Rights Act of 1964 (42 U.S.C.
§2000a(e)), Excluding from the Act's Coverage Private Clubs and
Other Establishments Not in Fact Open to the Public."

III Analysis

The evidence shows that the Elks is not genuinely selective in its choice
of members. The lodge has a large number of members and is part of an
even larger national organization which advertises on the Internet for
members, facts which argue against selectivity of association.

Several witnesses testified that the lodge facility and its property on
South Main Street were used by non-members. Members may bring guests for
socializing. Regular lodge events such as bingo are open to the public.
The lodge facilities are rented for private parties and group functions.
Although only members may actually rent the facility for functions, these
events are usually attended by a majority of non-members.

The lodge engages in commercial activities to a large extent, such as
frontier day, circuses, haunted houses and golf tournaments, which are
open to the public. Often during community fundraisers, the public is
admitted to the grille to purchase food and drink. The funds from
commercial activities such as these are necessary to support the lodge
itself, because member dues alone will not suffice.

The lodge's purpose is not one with which the admission of women would
intefere. Women have been an integral part of the Elks' activities for
many years, often providing much of the volunteer labor needed for
social, charitable and fundraising activities. Witnesses state that
approximately 90% of the Emblem Club's activities are directly related to
the Elks.

Respondent's defense is that the lodge is a private club, limited to
members only, which raises money for charity and does not provide a
service of goods to the public. The evidence indicates only lofge members
may hold office, attend meetings, vote and enter the lodge via a
membership card. There was a wide range of opinion from witnesses as to
the extent non-members have access to the lodge facilities on a regular
basis. As a whole, the evidence indicates overwhelmingly that the public
has frequent access to the lodge for varioous lodge activities and
fundraising. Witness testimony also indicates the lodge collected funds
from commercial activities and services offered to the public, such as
selling foods at their club and the rental of their hall. Therefore, the
evidence does not support respondent's defense that the Elks does not
provide a service or goods to the public.

Based on the evidence, the Commission finds that the Elks is a public
accommodation, not an "institution or club which is in its nature
distinctly private."

IV. Legal Standard - Discrimination

RSA 354-A:17 provides that "it shall be an unlawful discriminatory
practice for any person, being the owner, lessee, proprietor, manager,
superintendent, agent or employee of any place of public accommodation,
because of the ... sex... of any person, directly or indirectly, to
refuse, withhold from or deny to such person any of the accommodations,
advantages, facilities or privileges thereof;"

V. Analysis

The complainants allege they were rejected for membership into the
Franklin Elks Lodge because of their gender and that they were harassed
by members because they were women who had applied for membership.

The four female complainants, one other female, and five males were
approved by the Elk's investigating committee for membership. The females
were rejected after three separate ballots, a practice that is not
customary. The male applicants were approved for membership by an
individualized ballot. Witness, David Maloof, the Elks' Esquire at the
time, recalls only 3-4 males had been rejected for membership in the
prior four years.

JoAnne LaBonte and Terry Bergeron-Hoyt testified they were told that
members were attempting to "stack" the vote by calling members who seldom
attend meetings to be present for the vote on the female applicants. Dale
Parris, the Exalted Ruler at the time, testified that although normally
about 40 members attend the regular Elks meetings, approximately 76
members were present at the meeting to vote on the complainants'
application for membership.

Several witnesses testified that various male members had made derogatory
comments about females becoming members or personal remarks about the
individual complainants, around the time of the vote on the complainants'
applications.

David Maloof and Gloria Seal Collins, who was employed as a bartender for
the Elks, heard member Buddy Miller state after the first vote: "The
women can get in if they give us blow jobs." Maloof also testified that
Elks member Alby Morang stated there were two reasons women wanted to
become Elks: "They are either cunts or assholes."

Complainant Renee LaBonte states that after she applied for membership,
her cousin, David Marceau, asked her fiance who wore the pants in the
family and told him he was "pussy-whipped."

On April 28, 1997, Renee LaBonte wrote a letter to Dale Parris, Exalted
Ruler, informing him that Buddy Beyer, an Elk member who was also
employed as a bartender, was harassing her regarding her denial of
membership. LaBonte states nothing was done about her complaint.

Complainant JoAnne LaBonte testified that several male members told her
that she had been rejected for membership because she is female and that
women should not be Elks. Buddy Miller told her she would be blackballed
because she is female and she should stay in the Emblem club. Clark
Fuller asked her husband why he couldn't control his "little woman." She
also states Elkt member Marcoux asked her who put her up to applying for
membership and when she replied no one, Marcoux called her a "f_____
bitch."

Complainant Terry Bergeron-Hoyt states after the vote members told her
she had been rejected because she was female. She said she was told that
members were called to attend so that they could vote against her.

Dale Parris, Exalted Ruler at the time of the votes, states he also heard
comments from members that they didn't care what the Grand Lodge did,
they weren't going to let women in. In the Elks' newsletter, the "Big E
News", dated May 1, 1997, Parris wrote: "Finally, we held balloting for
the ten candidates. The newspapers are full of it, but for the record,
all males were accepted, and all females rejected. Grand Lodge Statute
14.030 gives me the privilege of calling for another ballot if I feel
there was discrimination. I have done so." Parris testified that there
was no reason the complainants were rejected other than their gender.

In letters to the Human Rights Commission in response to the charges of
discrimination, Parris made the following statements:

" ... all candidates are treated the same way. We usually ballot once on
the males (before females were permitted to make application) and he
either makes it or not. But because a change was involved and a female
candidate was to be balloted on, we ran three unsuccessful ballots.
Change is hard to accept - and those that did not accept candidate
LaBonte are guilty of not keeping an open mind. But there was no
discrimination. Some people cannot get used to change. Personally I feel
that in time female candidates will be accepted."

"I sincerely regret that candidate Renee Labonte was rejected for
membership. She is a good worker and the Lodge needs members of her
calibre. I do not feel that there was any discrimination. Change is hard
to accept and some of our members have not accepted the change. This
problem will be addressed at our next grand lodge session in July. Until
then I have no choice but to accept the ballot after 3 tries."

Samanto Quain, secretary for the Elks, wrote in the "Big E News" dated
July 1, 1997: "The Lodge, as of this writing, is experiencing a financial
shortfall. This can be attributed to our stand in regard to females in
our Lodge." He also writes in the October 1. 1997 newsletter: "I have
withheld my thoughts on our rejection of female candidates. This is a
mystery because we feel comfortable when they are in the lounge and we
have given them all the privileges except membership. On the other hand I
cannot understand the rejected female candidates' action in view of the
many hours they served the Lodge and they still serve. The circus, the
Summerfest committee, the socials would be impossible without their
support. The mystery is why they would want to destroy the things that
they have built up."

Van Hill, lodge member and Exalted Ruler as of March 27, 1999, testified
members made it known that they were against the female applicants by
making comments such as the women wanted to take control and "run the
lodge."

Helen Gallant, the other female applicant in April 1997, testified that
she believed she was rejected solely because of her gender. She applied
four times before her application for membership was accepted by the
lodge. She states there were no changes in her application from the
beginning. She states the 4th vote was a success because the one man who
objected to her membership didn't come to vote. "They knew it was time
for women to be admitted."

Respondent does not dispute that some members made inappropriate comments
about the female applicants and their applications for membership.
Respondent's defense is that the Elks did not discriminate against the
complainants, and an organization of over 600 members cannot be held
liable for the comments of a few members. Respondent offers in support of
its position that none of the inappropriate remarks were made by any
officer of the Elks. Respondent also submits as evidence to support their
claim that the Elks members do not discriminate against women, the fact
that females were eventually admitted to the lodge. Respondent states
members were angry that the complainants were aggressive about seeking
membership into the Elks and that they filed complaints of discrimination
instead of repeating the application process until they were
admitted.

VI. Conclusion

The Commission concludes from the evidence that all four complainants
were rejected for membership into the Franklin Elks Lodge on the grounds
of their gender. Although the vote is conducted by secret ballot, several
witnesses, including the exalted ruler at the time of the vote, testified
to their "valid assumptions" that the women were denied membership solely
because of their gender. There was also evidence that showed because they
applied for membership, the four complainants were subjected to ongoing
verbal and sexual harassment from several Elks members. Although it is
respondent's position that the Elks should not be liable for acts of
individual members, evidence indicates Elk officials were aware of the
harassment toward the female applicants, yet failed to take any action to
stop it. There is also evidence the Elks' secretary wrote in the Elks'
newsletter that the "women's actions might destroy the lodge.

The commission finds that the Franklin Lodge of Elks is responsible for
statements made by members about the complainants because the statements
were made by the members in their capacities as members. The fact that
women were eventually admitted to the lodge as members does not erase the
discrimination that occurred toward these four complainants.

Based upon the foregoing, the Commission finds that the Franklin Elks
Lodge #1280 BPOElks discriminated against Terry Bergeron-Hoyt, Sally
Marcoux, Renee LaBonte and JoAnn LaBonte based upon their gender in
violation of RSA 354-A:17.

VII. Award of Damages

Having determined that the respondent has engaged in an unlawful
practice, the commission is authorized to order the respondent to pay
damages to the complainants. These damages include compensatory damages
and attorney's fees. RSA 354-A:21,II(d); E.D.Swett, Inc. v. New
Hampshire Commission for Human Rights and Leonard Briscoe, 124 N.H.
404 (1983). The Commission is also authorized to order the respondent to
pay an administrative fine in order to vindicate the public interest. RSA
354-A:21,II(d).

A. Compensatory Damages

The Commission finds that Terry Bergeron-Hoyt, Sally Marcoux, Renee
LaBonte and JoAnn LaBonte suffered emotional harm, stress, embarrassment
and humiliation as a result of unlawful discrimination by respondent. The
complainants testified that despite their history of volunteer work with
the Emblem Club, several members made derogatory and anti-female comments
to them and about them to other members. Some of the complainants
testified that people in the community also approached them in public
places, such as the grocery store, and made remarks against the female
applicants and their decision to apply for membership. Some of the
complainants testified about instances of members making harassing
remarks to their husbands or friends about "controlling their women." The
complainants testified that the members' harassing comments were
humiliating, degrading and caused them stress, tension, loss of sleep and
headaches. The complainants also found it difficult to continue to
socialize at Elks-sponsored functions because of the harassment. The
commission finds especially egregious, the evidence that a member
suggested the females offer sexual favors to the male members in exchange
for membership approval. Accordingly, the commission finds that the four
complainants were severely affected by the discrimination and orders the
respondent to pay the sum of $10,000 to each complainant to compensate
them for emotional harm.

B. In determining whether to levy an administrative fine and what the
amount should be, the commission has considered the following factors:
the nature and circumstances of the violation, degree of culpability, any
history of prior violations, and the goal of deterrence. The commission
recognizes and appreciates the good work the Franklin Elks Lodge and
other Elks Lodges do for their communities. The commission also
understands an administrative fine may have an impact on the Elk's
charitable functions. However, the commission cannot ignore the
preponderance of evidence in these four particular cases that shows the
Franklin lodge discriminated against the four complainants based upon
their gender. The commission orders the respondent to pay an
administrative fine to the State of New Hampshire in the amount of $6,000
for the discriminatory practices in each complaint, for a total of
$24,000.

C. Attorneys' Fees and Costs

The commission orders the respondent to pay the complainants, reasonable
and necessary attorney's fees and costs. Complainants' counsel is ordered
to submit a detailed, itemized statement of fees and costs within 20 days
of this order. Respondent is granted 10 days from the filing of the
statement to object. The commission will then enter a final order.

F. Total Damages

Respondent is ordered to pay each complainant the sum of $10,000, for a
total of $40,000 plus attorneys' fees to compensate them for emotional
harm as a result of respondent's discriminatory practices.

Respondent is also ordered to pay $24,000.00 to the State of New
Hampshire.

So ordered.

Commissioner John J. Coughlin, Esquire
6/15/99

Commissioner Elizabeth D. Lown
6/21/99

RULINGS ON REQUESTS FOR
FINDINGS OF FACT AND RULINGS OF LAWSUBMITTED BY COMPLAINANT

1. Granted

2. Granted

3. Granted

4. Granted

5. Granted

6. Granted

7. Granted

8. Granted

9. Granted

10. Granted

11. Granted

12. Granted but substitute David Maloof for Samanto Quain and Maloof was
unsure if the Elks kept records of applicants. Strike the last sentence and
replace with, "Maloof said 3-4 males had been rejected during his
tenure."

20. Granted but substitute phrase "There was a fifth female applicant in
this group, who was rejected" with "There was a fifth female applicant who
was also approved by the membership committee and also later rejected"

21. Granted but substitute "7" for "5"

22. Granted but include she was a 16 year member of the Emblem Club and
substitute phrase "in other ways" with "at their social and fund raising
activities."

23. Granted but add phrase at end of sentence "at their social and fund
raising activities."

24. Granted but add phrase after word Elks "social and fund raising"

25. Granted but replace phrase "The application of the four applicants"
with "Five female applicants, four of which were the complainants" In the
second and third sentences replace word "five" with "six". Addition of the
phrase: "Exalted Ruler David Parrish determined, within the rules of the
Elks lodge, that the four female complainants were prejudiced in the April
9th ballot and ordered a second vote by the members."

26. Granted but replace "four female applicants" with "five female
applicants, including the four complainants"

31. Granted but include "Also according to LaBonte, David Marceau called
her a 'fucking lying bitch"'

32. Granted

33. Granted, but change typographical error in "Bergeron-Hoyt" to
"Bergeron-Hoyt"

34. Granted

35. Granted, but eliminate last two sentences and replace with "Samanto
Quain's remarks in 'Big E News' expressed membership belief that females
should not be allowed in as members and that the women wanted to destroy
the lodge by bringing this suit."

36. Granted but remove sentence "If the investigative committee's report
was not favorable, a candidate would not be voted on."

37. Granted but substitute "two" with "three - four" and delete phrase "and
that once a person has paid the $25 application fee, he can use the lodge
facilities."

38. Granted

39. Granted

40. Granted but substitute "Joseph Giunta" for "Maloof" and replace last
sentence with "He states that all of the females lost by one vote on April
9, 1997."

41. Granted

42. Granted but delete first two sentences. Substitute "12,030" with
14.030"

43. Granted but eliminate first sentence.

44. Granted but substitute "Two" with "At least one"

45. Granted

46. Granted

47. Granted

48. Granted

49. Granted

50. Granted, but add: There is no single test which can be easily applied
and easily understood to be determinative as to whether an establishment is
in fact a private club or not. Nesmith v. YMCA 397 F.2d 96 (4th Cir.
1968). A number of variables must be examined in light of the clear purpose
of the Civil Rights Act of 1964 to protect only "the genuine privacy of
private clubs... whose membership is genuinely selective... 110
Congressional Record 13697 (1964).

51. Granted but delete phrase "facts which argue against selectivity of
association" Replace last sentence with "The organization is self promoting
at various charitable and social functions to attract new members.

52. Granted

53. Granted but in first and second sentence after word "activities" add
words "and fundraising".

RULINGS ON REQUESTS FOR
FINDINGS OF FACT AND RULINGS OF LAWSUBMITTED BY RESPONDENT

LIABILITY

1. Denied

2. Denied

3. Denied The Franklin Lodge of Elks is responsible for statements made by
members about the Petitioners if the statements were made by the members in
their capacities as members.

REMEDIES AND DAMAGES

4. Granted

5. Granted

6. Granted

7. Granted

8. Granted, but replace with following: The New Hampshire Constitution Part
1, Article 20, provides: "In all controversies concerning property, and in
all suits between 2 or more persons except those in which another practice
is and has been customary and except those in which the value in
controversy does not exceed $1,500 and no title to real estate is involved,
the parties shall have a right to a trial by jury. This method of procedure
shall be held sacred unless, in cases arising on the high seas and in cases
relating to mariners, wages, the legislature shall think it necessary to
alter it."

An eighty-five year policy and tradition of the Franklin Lodge of Elks
#1280 BPOElks was willingly altered to accept women in their organization
(They were not obliged to do so.). Two years after the change in their
by-laws, the plaintiffs did apply for membership. They were recommended by
the investigating committee, had the approval of the chief presiding
officer and all those serving in a leadership capacit

The plaintiffs did nothing to champion their cause. They did not write or
call membership to campaign for their position (as they were told those
opposed to their membership were doing). A vote was held and they lost by
one vote in a 2/3 requirement for membership. Upon that one vote
rejection, they immediately poisoned the well of good feeling, even among
those that supported them, by such statements regarding suing, owning the
place, and buying new cars with the money gained, etc. Understandably, the
second vote was worse.

While unfortunate that some crude remarks were made to and concerning the
plaintiffs, it is hardly reasonable that an entire 622 or so member
organization can be held responsible. One would wonder if this were to
stand, could the entire N.H. Bar Association be fined and held in contempt
for the courtroom antics of a couple of malcontents? These arguments are
moot however, because this case has no merit under existing law. The
Commission's decision would serve to alter the social fabric of like
organizations to more politically suitable contemporary thought. This
however should be rejected.

The Commission erred and erred badly in declaring the Franklin order of
Elks a public accommodation. To gain membership, one must apply, meet
requirements, pass an investigating committee and be elected by a 2/3
majority. Upon gaining membership a person is given a key and can access
the building and enjoy the fruits of membership. A person can bring a
nonmember in the club only three times. In trying diligently to keep their
organization private and charitable, function rooms are first rented to a
member to accommodate wedding receptions, showers, etc. As part of the
charitable and public service nature of the club, they on occasion, allow
New Hampshire Fish and Game hunter safety course and the U.S. Post Office
to use the upstairs room, free of charge.

These arguments are baseless. It is the duty of the commissioners to make
their decisions on the New Hampshire law. In this case the law is clear.
The Franklin Lodge of Elks is a private charitable organization, and
clearly not a public accommodation. The decision of the commission cries
out for reversal, as does the Franklin Lodge of Elks, for justice.

Commissioner Loren Jean
8/4/99

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